Theoretical Grounding for Social Rights based on Public Choice

Abstract

　Dennis Mueller insists that if four conditions ― negative externality, decision-making cost, enormous burdens inflicted by laws on people, and uncertainty in the constitutional stage ― are met, constitutional rights will be made. However, this theory does not apply to social rights, even if it applies to civil liberties. So, this paper considers the mechanism by which social rights are made, referring to Muellers theory. In discussing social rights, it is necessary to examine three problems. First, what is the mechanism by which other constitutional rights are limited? Second, how will the immunity from the laws, which inflict considerable burdens on the weak, be given for them? Third, how will the majority of people be induced to enact the laws which deprive themselves of their property? The key to tackling these problems lies in the choice of people in the constitutional stage who can guess somehow the probability of being the weak in the future. Derivation of social rights could be explained by analyzing their choice.